Friday, 30 June 2006

Dáil Eireann Debate
Vol. 622 No. 6

Page of 5

An Leas-Cheann Comhairle:I bring to the attention of Members a typographical error in the published list of amendments. In amendment No. 42, subparagraph (a)(ii), the word “recombinart” is incorrectly spelled. It should end with “ant” rather than “art”.

SECTION 1.

Tánaiste and Minister for Health and Children (Ms Harney):I move amendment No. 1:

In page 3, lines 22 to 24, to delete all words from and including “specified,” in line 22 down to and including “7(1A)(a)” in line 24 and substitute “appointed, pursuant to section 7(10)”.

I tabled this amendment to clarify that we are talking about a number of different tests, including the ELISA, RIBA and PCR tests and any other tests which might arise in the future. As I said when concluding on Second Stage, the decision to grant the compensation, health insurance and the health card, with the exception of the group which has been processed, or is being processed, by the tribunal, will be based on clinical diagnosis or a positive test. We want to make way for any tests which might be devised in the future.

Ms McManus:Amendment No. 1, according to my list of amendments, relates to a different issue, that is, regulations. I understand the Tánaiste has been speaking on amendment No. 4.

Ms Harney:The amendment I moved is to section 1 in regard to the diagnosis.

[1850]Ms McManus:Amendment No. 1 on my list relates to regulations with which nobody would have a problem.

Ms Harney:I dealt with the making of regulations when concluding on Second Stage. Many of the issues would be very detailed and it would not be desirable for them to be written into legislation. We want to deal with them by way of regulation. That is generally accepted.

Amendment agreed to.

An Leas-Cheann Comhairle:Amendment No. 2 is in the names of Deputies McManus and Twomey. Amendments Nos. 3 to 7a are technical alternatives to the same part of the Bill. Amendments Nos. 6, 7 and 7a are also alternatives to amendment No. 5. Amendments Nos. 42 to 45, inclusive, are related. Amendments Nos. 2 to 7a, inclusive, and 42 to 45, inclusive, and the amendments to amendment No. 4 may be discussed together.

Ms McManus:I move amendment No. 2:

In page 3, to delete lines 26 to 33 and in page 4, to delete lines 1 to 8.

The simplest and cleanest way to deal with this issue is to delete the section. This section should never have been included in the Bill. It was to be a stand-alone Bill to provide insurance for people who could not access it. Had it retained that intention, we would all commend the Tánaiste and her officials, who put a lot of work into designing the insurance scheme. Instead we are embroiled in what is a very unhappy and unfortunate disagreement when one considers the people directly affected. I ask the Tánaiste to consider deleting the lines.

I refer to my amendment to amendment No. 4. The Tánaiste’s amendment is essentially about three tests which she is including as measures. I have concerns in that, given the way they are spelled out in the amendment, a person would be required to have two tests. Subparagraphs (i) and (ii) of the Tánaiste’s amendment do not provide an either-or requirement. The subparagraphs run [1851]into each other. It seems we are requiring people to not only take the ELISA test but also the RIBA test to qualify. I know that is not the intention but that is the way it reads. If we do not insert the word “or” at the end of subparagraph (i), we will end up running the two subparagraphs together. People from the various groups have major concerns about this. I ask that the Tánaiste’s amendment be amended.

The other important amendment about which I will speak relates to the requirements these tests set for people. We have no problems with the tests being set as requirements, if we must have tests. However, there needs to be an additional measure to capture those people who cannot be captured by way of these tests due to their limitations.

My amendment No. 7a to the Minister’s amendment No. 4 proposes a fourth subsection, so there would be one subsection for the ELISA test, a second subsection for the RIBA test, a third subsection for the PCR test and a fourth subsection which would read as follows: “in the opinion of a consultant gastroenterologist, a hepatologist, the person displays, suffers or has suffered from symptoms consistent with exposure to hepatitis C virus, and there is evidence that the person has been exposed to hepatitis C virus”. That captures those people whom the tests do not pick up but who still suffer from the virus or at least have all the symptoms of the virus, and for whom there is evidence they have been exposed to the virus. It is a strict criterion.

While it is suggested the numbers involved are negligible, those involved are human beings. They were contaminated and poisoned by the State, which we need to remember. If there is one person left out as a result of the Bill, we have done that person a grave disservice. To include this additional test, whereby one must have the clinical diagnosis of a consultant and evidence of exposure, should be sufficient. I disagreed with the Minister when, in effect, she stated that one cannot believe doctors. We have to allow for the fact that there is expert opinion and that a consultant has sophisticated training and experience that comes to bear when making such a diagnosis.

In her summing up the Minister referred to a court case and stated the person who took the case suffered from fatigue and depression. That is not true. The Minister should not be advised in this way. I do not know who is giving her this advice. I suspect it does not come from her Department but from the Attorney General’s office. It should get its facts right. In this case, fatigue, joint pain, liver function and various other symptoms which suggested hepatitis C were shown to be evident. There was no depression. It is important to put that on record.

To recap on the position I ask the Minister to adopt, we must make clear that the ELISA test is an either-or test to the RIBA test and that we are not putting the two together, as it would [1852]appear in the amendment, which is open to confusion. The other issue is that the Minister should provide for a clinical diagnosis by an expert consultant. Where a patient has received that diagnosis, he or she would also have to prove he or she was exposed to the virus. Once a patient qualifies on those grounds, he or she should be allowed to go to the tribunal.

A number of people are not captured by the amendment put forward by the Minister. These people could still go to court because they have a case. Is that what we want?

My blood ran cold when I heard the Minister state she could not have consulted with the groups because she had to protect the taxpayer and the State’s interest. I recall a previous Minister for Health putting forward a similar argument that he had to protect the taxpayer. It does not go down well and is not the way to deal with this issue. It was not the right thing to do then and it is certainly not the right thing to do now. Other issues have to come into the balance. I accept this issue concerns taxpayers but there are also issues of justice.

We are not referring to a large group of people. There is no evidence with regard to there being 15,000 people involved and the floodgates having opened. That has not happened. If we can set down the criteria with regard to the three tests, clinical diagnosis and evidence of exposure, that would satisfy those people and organisations which have been marginalised and excluded from this process and allowed only a limited input. This is their input — I feel I am the conduit for that. They have all the weight of experience and long knowledge, more than anyone in this House, which we need to respect and regard in this debate.

Ms C. Murphy:I strongly support those points. Yesterday I listened to the Tánaiste list symptoms that could be associated with other illnesses and viruses. The proposed subsection (c) is reasonable because a balance of probability would apply in this regard. If a person has the symptoms listed by the Tánaiste but never had a blood transfusion or was never treated with anti-D, it is clear that person does not have a case. However, if that person had a transfusion or was treated with anti-D and presents with symptoms, a balance of probability must be considered. That point is covered in subsection (c), which would largely deal with the justifiable concerns in this regard.

Dr. Twomey:The Tánaiste will ram the Bill through the House but it will leave a bad taste for many people watching our proceedings. I asked the Tánaiste several questions yesterday, some of which she has partially answered. Some of her reply, which leaves us more confused than ever, should have been part of her Second Stage speech. For example, yesterday, when I questioned whether the ELISA test was good enough on its own, the Tánaiste came back after six hours [1853]with the RIBA test and the PCR test. I am not an expert on treating hepatitis C but I understand it better than most. These other tests also have problems. The Tánaiste should provide more information to the House with regard to the tests so we can be satisfied with what is happening.

The Tánaiste referred to the KL case in her closing argument, when she suggested that fatigue and depression was all the person suffered from. No consultant would support a court case for a person who suggested hepatitis C was the problem if the only symptoms that person complained of were fatigue and depression. One in ten patients seen in any GP’s surgery suffers from fatigue and depression. No consultant would stand over that.

The Tánaiste needs to explain further with regard to the restrictions being introduced, which would be fair to the House as well as to the groups being represented by us today. In essence, we are trying to represent the men, women and children affected because the Tánaiste did not enter serious negotiations with them. The Tánaiste must explain this matter because we oppose the Bill purely on the basis of the tests.

We explained yesterday to the Tánaiste how the ELISA test might go wrong. It is important that I should address some of the other points raised by the Tánaiste. With regard to the PCR test, a recent report states:

Several problems exist in the clinical application of HCV RNA testing by PCR. First, there is a high degree of variability in laboratory performance such that specimens may not provide the same result if retested. In a survey of 31 European laboratories performing HCV PCR, only five were able to correctly identify all positive and negative specimens in a standardised test panel.

On the same issue, the report states:

Other factors which may contribute to variability include specimen storage conditions, the design of amplification primers, variability of biochemical reactions, DNA product contamination, and the efficiency of postamplification detection systems. As noted above, there are a variety of reasons why HCV RNA tests might yield false negative results in patients who are anti-HCV-positive.

Difficulties therefore arise with the tests proposed in the legislation. If we had time to discuss this matter in full and receive expert medical advice similar to that obtained by the Tánaiste, it might be possible to cover every potential case and perhaps the Opposition would be convinced of the merits of the Government’s case. It is, however, too much to expect Deputies to take on board the information we have been given and vote on the Bill within an hour.

The Tánaiste is treating the groups in question disgracefully. Regardless of whether her intentions are good, it is wrong from a legal and medi[1854]cal point of view to ram through the amendments. Her approach will inevitably create further problems. While the legislation may be signed into law or may survive a challenge in the Supreme Court, the manner in which the Tánaiste has dealt with this issue will leave a bad taste in the mouths of victims. If this is the way she proposes to do business on such a serious issue, it will also leave a sour taste in the mouths of Opposition Deputies.

The Tánaiste has not answered a series of questions Deputies asked yesterday on the other blood test provided for in the legislation, namely, the alamine aminotransferase test or ALT. In the event that, God forbid, others are infected by hepatitis C in future, under the legislation they will have one opportunity to present themselves. This is a disgraceful and ridiculous provision. If a woman who receives anti-D contracts hepatitis for any reason — she may not even be aware that she has the condition — she will have only one opportunity to obtain a diagnosis. As I stated yesterday, if the Tánaiste persists with the highly restrictive approach taken in the legislation, every woman who receives anti-D should at least be offered an alamine aminotransferase test 16 weeks after receiving the product.

Deputies said more than enough on the Bill yesterday and gave the Tánaiste ample opportunity to respond. She should suspend the vote on the Bill to give Deputies an opportunity to study the expert legal opinion she has received. Rushing the Bill through the House against the wishes of the Members is not the right way to treat the House.

I can understand documentation on PCRs, ELISA tests and RIBA tests, but many Deputies do not understand the meaning or significance of these tests and are unaware that many such tests are geared towards diagnosing an illness so that it can be treated immediately, rather than determining whether a person has had the illness in the past. These are the issues comprehended by the terms “false negatives” and “false positives”. The Tánaiste’s medical adviser will inform her about these matters and the least she could do, on being so informed, is to prepare a briefing document for Deputies, many of whom, on both sides, will vote on this legislation without fully understanding what they are voting for or against.

The Tánaiste is asking us to vote in favour of deciding, on the basis of three blood tests, whether a person was infected by State blood products without providing an explanatory memorandum on the specificity of the blood tests in question. I could read some of the data available on their specificity which show that they may not work in some cases, including some of the circumstances in which it is proposed to use them. It is wrong and surprising that the Tánaiste has failed to explain these matters to the House.

Caoimhghín Ó Caoláin:This is not just an issue of bad taste. It is very important we recognise that the concerns of Opposition Deputies are [1855]that, as a result of the passage of this legislation, fellow human beings with real and genuine cases will be excluded from their rightful entitlement. That is what is at the core of this debate. It is vexatious, to say the least, that we are being driven on to ground of the Tánaiste’s creation in her efforts to battle out this legislation. We should not be addressing the sections in question because they should not be in the legislation.

While I understand Deputy McManus’s amendment and accept the point she has made, I believe she will also agree it is most unfortunate that we are addressing these matters. We should definitely only address this issue as a single, stand-alone Bill. The commitment given to the various campaigning groups and their understanding throughout the process was that this legislation was about insurance. What are we dealing with here? We are dealing with amendments to previous legislation on hepatitis C and the compensation tribunal. That is not what this legislation should address. We are now forced to discuss tweaking and the introduction of safety measures to avoid the worst case scenario presenting for sufferers, who for years have experienced agony and distress, things that are very hard to measure but which we all have the capacity to imagine.

One must wonder what has been going on in the Department of Health and Children. It is interesting that the Tánaiste, in her concluding address on Second Stage, spoke of a forked tongue approach whereby the Department in its dealing with the representative groups could not possibly expose to them that it was working on another level to ensure the so-called public interest and greater good were not being compromised. What is she saying? Is she suggesting for a moment — I will continue regardless of whether she is listening — that unscrupulous people are queuing up, among those who have been recognised heretofore as validly suffering as a direct result of being poisoned by infected batches of blood or blood products such as anti-D, to wrongly claim assistance under this insurance scheme? That is an outrageous proposal but it is exactly what the Tánaiste’s concluding remarks on Second Stage suggest.

Having been circulated with the relevant details, thanks to the Haemophilia Society and others, Deputies are aware of the numbers of people exposed to the various infected products. Where are the 15,000, 16,000 or 17,000 people who were cited? The imaginary body of unscrupulous people seeking to claim that to which they are not entitled is not registering on any Richter scale. As has been spelt out, this matter involves a very small number of people who have been genuinely identified and are already recognisable within the overall equation. Nothing in what the Tánaiste has said and nothing in the proposed amendments in any way ameliorates the fact that the legislation takes a [1856]restrictive approach to which unfortunate, tragic people will fall further victim because the Tánaiste is not approaching this matter with the heart that is necessary. I cannot co-operate with the further passage of this legislation. I will oppose it in every way I can because it is fundamentally flawed and wrong. In line with my colleagues I propose my amendments Nos. 3 and 5, which mirror those of Deputies McManus and Twomey in this grouping. I urge all Deputies to support these amendments. It is not too late for Government Deputies, backbench or otherwise, to take a courageous, principled stand which will win the applause of victims of this tragedy and people who want truth and justice across our society.

I cannot co-operate with the further passage of this legislation. I will oppose it in every way I can because it is fundamentally flawed and wrong. In line with my colleagues I propose my amendments Nos. 3 and 5, which mirror those of Deputies McManus and Twomey in this grouping. I urge all Deputies to support these amendments. It is not too late for Government Deputies, back-bench or otherwise, to take a courageous, principled stand which will win the applause of victims of this tragedy and people who want truth and justice across our society.

Mr. Gormley:My amendment referred to sections 1A and 1B, to delete lines 27 to 33, but I think people understand and I am coming from the same angle as previous speakers. Yesterday the Tánaiste made an outrageous remark in the Chamber when she accused those of us who are trying to represent groups that visited us, such as Positive Action, of making a political football of this issue. I wonder if the Tánaiste still thinks that. I can assure her that we are not doing so. As politicians we are trying to represent the interests of people who have suffered greatly. By making that sort of remark the Tánaiste is playing politics.

The point is, if it is not broken, do not fix it, and this was put to us repeatedly by these groups. They are happy with the existing legislation and were given to believe that it would be stand-alone legislation. The Tánaiste is projecting the attitude that she will tough it out and face these people down. This is the wrong attitude in these circumstances. A little more compassion and understanding for these people is required. Is the Tánaiste saying that previously people were qualifying for benefits to which they were not entitled? How many people is she talking about? This is similar to Deputy Ó Caoláin’s question.

The form of the Department of Health and Children is that it is always trying to cut costs and face people down. The Tánaiste is familiar with the record. This is not the time to play hard-ball with people’s lives. That is why I am opposed to these sections in particular. Certain people will be discriminated against. Yesterday I referred to a letter the Tánaiste received from Positive [1857]Action saying that approximately 40 people on its database had subsequently tested negative but suffered from severely bad health. Forty people is a small number, but if the Tánaiste has information that there are many people out there, we would like to hear it.

Ms Lynch:I support Deputy McManus’s amendment and those of the other Opposition speakers. In presenting this Bill the Tánaiste outlined the potential appalling vista of the floodgate opening, but she is badly informed. There is no floodgate. The 15,000 to 16,000 people to whom we refer are from 1991 to 1994 and are not queuing up to enter the tribunal or the High Court. Neither do they present in large numbers at clinics for treatment. They got a different type of hepatitis C, type three, which is easily dealt with and has been dealt with to a great extent. This figure comes from a look-back programme by the Blood Transfusion Service Board, BTSB. If that trawl throws up 60 people, that would be considered a large number. If a large number of these people exist, the floodgate of which the Tánaiste speaks has been open since the original hepatitis C Act was introduced. Where are the hordes and floods of people? They do not exist.

It is worrying to hear the Tánaiste speak in these terms. Equally worrying is the bad advice she is receiving, and not, it appears, from the officials in her Department. Everybody to whom we have spoken has said the officials in the Department of Health and Children have been most helpful. Does the Minister realise the damage she has done between the various groups and her Department staff? They must continue to work with these people and are in a position whereby a Bill that was negotiated in good faith has a retrospectively limiting piece of legislation tagged onto it. The groups were never informed of it. They made clear that if there were a difficulty on diagnosis they would be prepared to discuss it at length and come to an agreement, which they always have done on every other issue.

On behalf of those who test negative I find this Bill deeply offensive. There are people who will support the case of the four groups involved. I direct the Tánaiste to the work of Professor Peter Simmonds, a professor of the University of Edinburgh Centre for Infectious Diseases, who was called as a witness by the State. Professor Simmonds does nothing but examine such matters in depth. He refers to a study in the former East Germany where samples from women infected at an early stage were kept and the women tracked over a 30-year period. He talks about these women who had tested positive because they knew it had happened and knew how to test. All were cleared of the virus and lost all markers of the disease over a 23-year period. As the original infection of hepatitis C in this country took place in 1977, this is virtually the same history. That is the only history we have. In 1991, the BTSB received the letter about blood studied reporting [1858]that there was something unidentified in the blood, not non-A or non-B, which turned out to be hepatitis C. When one examines that, it is clear that this disease does not have a history. Because it is new, we are not certain what we area talking about, how it develops and how it will progress.

I am surprised that the Tánaiste is being badly advised and that she has not met the people whose advice she has taken up to now. They have come to Dublin and tried to meet the Tánaiste. One of the women involved, a specialist who was involved in negotiating the Bill with the Department, came to Dublin today and has since gone home very upset. She feels the Bill she negotiated should have been stand-alone legislation. She found the Department very helpful, although she did not agree with everything it said. These issues should have been dealt with later and in a different way.

The floodgate the Minister has been told about has been open since the original compensation scheme was introduced but only 2,200 claimants came forward out of an estimated possible infection rate of 69,000. Where did the flood happen? It did not and will not happen. I lived through the first hepatitis C episode. The Minister is making exactly the same mistake made then. The scheme was hard won and dealt well with people whose lives had been affected in a continuing and fundamental way. The State has an obligation to own up to the fact that a State organisation allowed this to happen. As politicians and guardians of the public purse we must ensure that everything possible is done for these people. That should include symptoms and clinical diagnosis.

These people should be allowed to go through the system and the tribunal. Why does the Minister no longer trust the tribunal? Why does she not trust consultants? We trust them every day with our health, and that of our children and parents, so why not now? The Minister is being badly advised.

Ms Harney:I do not wish to name and embarrass my officials, some of whom are present. They have done a wonderful job in this area over many years, which I wish to be the first to acknowledge. The medical and legal advice, and the advice of officials in the Department who are not medics, has been fantastic. I know of no group of public servants more committed to the cause they seek to address through this legislation and the other aspects of this scheme. They are utterly committed, beyond the call of duty, and feel strongly about these issues.

Deputy Lynch is right to say that what happened to this group of victims was a disgrace. The Deputy need not expect me to try to defend it in any sense. I would not do that. I know some of these people well — two are among my closest friends in my family circle — and I know what they have gone through and that no compensation can ever make up what they have lost. Let [1859]there be no doubt about my position on that point.

Deputy Lynch asks why I do not trust the tribunal. Of course I trust the tribunal but it needs clarity as a result of the High Court case. The tribunal had been using the ELISA test, or jaundice, as the gold standard. In response to Deputy Twomey, one does not have to go through all the hoops but any of them. The tests are complementary.

I cannot accept what Deputy McManus is suggesting, not because I do not trust doctors but because I acknowledge that they get it wrong. In any action involving medical issues before the courts there are doctors on each side. They do not agree universally. I have a statement issued this afternoon by Professor William Hall who is well known to Members. He is head of the National Virus Reference Laboratory at UCD and is an international expert in this field. He writes that the tests used have been shown in numerous peer-reviewed medical publications and independent test evaluations to have excellent sensitivity in the identification of hepatitis C infection in individuals with normal immunity. People who do not have normal immunity, such as those undergoing treatment for cancer, or renal dialysis, can avail of the PCR test. One must simply have proof from any of these tests, or clinical evidence of jaundice.

In 1998 the medical experts, representatives of Positive Action and others involved in the expert group on hepatitis C agreed that this should be the test for the health card to give one access to the health services. In 1996 the Bill proposed on behalf of the groups by John Rogers, SC, and Ivor Fitzpatrick, Solicitors, that this test should be the diagnosis. Since then it has been introduced in the United Kingdom and Canada as the basis on which compensation is given. I am allowing in these amendments that if any other test arises, about which we do not yet know, it too will be facilitated.

The 40 persons either have gone through or are within the tribunal process. We cannot know the exact number. What we do here does not affect them. It would be unacceptable to seek to affect any of those individuals by anything we do here. There are cases in process with which the tribunal has not dealt and which may end up in court but will not be affected by this legislation because it is not retrospective.

The word “floodgate”, which I do not like, was used in connection with people making false claims. As a result of a High Court decision it may happen that a very large number of people can claim on the basis of pains and aches, or fatigue or symptoms that can be associated with other causes, and might receive compensation. The tribunal must follow the court decision. I do not take advice from lawyers alone because sometimes when the law and politics mix it is a lethal cocktail, as I know from my experience in [1860]this House. I take advice from medical experts too, much of which I have taken on board on this issue and I have studied what has been done in other countries.

Unfortunately, I am not in a position to accept Deputy McManus’s amendment because to do so would effectively say that a clinician’s testimony would be grounds for availing of the compensation and the insurance scheme. We did not accept those grounds for health benefits in 1998. When we agreed one had to have the positive diagnosis for the health card, we did not add that the word of a clinician should be sufficient. We must be consistent on the three aspects of support, namely, compensation, insurance and the health card. That is what we seek to do through the legislation and the amendments I have tabled.

Ms McManus:It is regrettable that the Minister is pursuing a defensive line in respect of this legislation. It is sad and distressing for people who have put a great deal of work into making the case, talking to us and to officials. The implication of the Minister’s response is that these organisations have another agenda.

Ms Harney:I am saying nothing about the organisations for which I have the highest regard. This is nothing to do with any of the organisations.

Ms McManus:Defensive is the only word for the Minister’s attitude here. I want to tease out what is happening because it does not make sense after all that these people have gone through. Why does the Tánaiste think these organisations are seeking this safeguard? What is in it for them? If they do not have a justifiable case, why are they making such efforts to ensure that every one of the members of this tiny community is protected? They are doing that because they have concerns and worries. They do not want this change in legislation to leave anybody outside the system.

4 o’clock

My amendment to the Tánaiste’s amendment recognises the need for clarity. I accept that the Tánaiste wants to bring some clarity to this matter as a result of the court case. That is not a big problem. The organisations have shown that they are willing to discuss this matter. That is not the issue — the issue is whether the Tánaiste is doing enough in setting out these requirements. I put it to her simply that she is not doing enough. She is leaving people outside the system. Even if there is just one such person, that person should be included in the system. Nobody should have been put in the position in which these people were put in the first place. They were poisoned by the State, which now has a duty to all of them.

The second point I wish to make relates to the provision relating to the expert opinion of a consultant. There is something deeply flawed about the Tánaiste’s argument in this regard. Doctors [1861]go into court to give their views on all sorts of things, for example in insurance cases. The expert evidence given by such witnesses is taken as expert evidence. Is the Tánaiste seriously telling me she is afraid that 15,000 people will convince this country’s medical consultants — I refer to hepatologists and gastroenterologists — to say they should be allowed to access the tribunal because they have all the symptoms of hepatitis C and have been exposed to the hepatitis C virus? That does not make any sense.

I suspect the Tánaiste is letting the theory get in the way. Whatever about the theory, the reality is that consultants like their reputations. They are very touchy about protecting their reputations. The Tánaiste is well aware that consultants can be pretty prickly people. In this instance, she is challenging the fundamental professionalism of the medical profession without having any basis for doing so. It is not enough simply to assert there is a risk and a danger. There is a risk that the sky might fall, but we know that will not happen. I do not think consultants will debase themselves for some unknown reason. There is nothing in it for them to write little scripts saying they think people have hepatitis C because they have depression or fatigue. That simply does not stack up. The Tánaiste cannot even cite the evidence of a court case to strengthen her argument.

I appreciate that the Tánaiste is in a bit of a bind — she is in a bit of a hole. It is obvious that it would have been much better for her — she would have received much more kudos — if she could have simply introduced a Bill to provide for an insurance system. It would all have been done and dusted by now and we could all have gone home for our tea. We are not there, however — we are here. We are in the minority here and the Tánaiste is in the majority. We are in the process of passing legislation that will add to the damage done to people who have already suffered at the hands of the State.

I ask the Tánaiste to include in the legislation a further alternative requirement, on which some people may need to rely. We should trust our doctors, whom we need all the time. Deputy Lynch has made this argument more eloquently than I am making it. If the Tánaiste does not amend this Bill in the manner I am suggesting, will she be satisfied in her conscience that she has looked after the people in question and their interests? The organisations representing the people under discussion have gone through hell. They have been tested in the fire during all the years in which they have been involved in this issue. They are advising the Tánaiste that this perfectly reasonable additional amendment needs to be made. Even though there is absolutely nothing wrong with the amendment, the Tánaiste continues to refuse to accept it on the basis of the advice she is getting.

[1862]Those who are advising the Tánaiste in this regard are not advising her very well. They did not advise her properly on minors when she spoke in the Dáil yesterday on the Order of Business. They did not advise her correctly about the court case when she spoke just before the start of Committee Stage. I appreciate that Ministers have to rely on their advisers. I do not think the Tánaiste has deliberately decided to take this approach. I ask her to use her judgment, forget about the advisers and think independently about this matter.

The groups to which I have referred represent people who have suffered terribly at the hands of the State. The Tánaiste and the rest of the Members of this House, who are working on behalf of the State, have to ensure we do our best for the people in question. There should be no half-measures — we should go the full distance to ensure that all those who are affected, even if it is just one person, can get their full entitlements. They have those rights at present but the Tánaiste intends to take them away. I know that Deputies on the Government side have concerns in this regard. I respect that because it is to their credit. I ask the Tánaiste to accept my amendment to her amendment so we can all go home knowing we have done our very best.

Dr. Twomey:I reiterate the point I was making earlier. Is it really acceptable for the Tánaiste to rely on expert medical opinion she received 30 minutes before we are expected to vote on this legislation? Is it right that she should mention the pertinent legal issues, which she feels justify her decision to take this approach, 90 minutes before we vote on this legislation? There were 15 or 16 debates on this issue in the Dáil in the 1990s. The two main Opposition spokespersons at that time, Deputies Cowen and O’Donnell, are now seen as potential future leaders of Fianna Fáil and the Progressive Democrats, respectively. It would have been nice if the Deputies in question had come to the House today to explain some of the things they were speaking about at that time.

The approach being taken in this legislation is not right, especially when one considers all the arguments and debates about this issue in recent years. The Tánaiste’s proposal in section 4 of the Bill to restrict the categories of person who can apply for compensation, medical cards and insurance will affect people who have such rights and entitlements at present.

Ms Harney:That is not true.

Dr. Twomey:It is.

Ms Harney:That is definitely not true.

Dr. Devins:That is not true.

[1863]Dr. Twomey:The Tánaiste has clarified absolutely nothing. She has passed on all kinds of legal advice to the House, but she has not given Deputies any opportunity to read the advice, or get opinions on whether the Tánaiste’s proposal is justifiable. I have great respect for Professor Hall and I know his opinions are worth considering. I do not think it is appropriate, however, for the professor’s opinion to be waved in front of Deputies, or for us to be expected to believe it, like dumb country boys. The least the Tánaiste can do is make this evidence available to Deputies so we can read it and form a considered opinion on it.

The manner in which the Tánaiste is treating the victims of this State scandal is absolutely disgusting and disgraceful. Given that she was a Member of this House in the 1990s, when much of this debate started, she should be well aware of their feelings. The Tánaiste knows this is no way to deal with this issue. She hopes we will all disappear out of here at teatime and that this issue will disappear with us. I think she knows she is wrong. She should suspend what she is doing right now. Report Stage should be postponed until after the weekend to give Members an opportunity to examine the evidence she is using to justify her actions. I do not care whether that evidence comes from Professor Hall, the Department of Finance, the Office of the Attorney General or the Department of Health and Children. The least the Tánaiste should do is try to convince the Members of this House, who represent the people whose concerns about this issue she will not address, that the course of action she is taking is the right one.

Caoimhghín Ó Caoláin:It was apparent the Tánaiste had a recent experience of her own in mind when she said, “When the law and politics mix it is a lethal cocktail.” However, she has put her jack back in his box, at least for now. When the Tánaiste spoke about the court analysis, she used the words “may well”. She spoke about the prospect of a floodgate — a word she does not like — being opened and unscrupulous people presenting themselves. We are dealing with legislation. The words “may well” do not bring the certainty I believe is required in legislation. Speculative consideration is not good enough. We need certainties. We are putting in place legislation which will have a critical effect on the conditions that apply to the lives of ordinary citizens. It is incumbent on the Tánaiste, as it is on all Members, to deal with certainties. Speculative notions such as “may well” are not adequate justification for the approach she has adopted in opposing the reasonable amendments tabled by the Opposition. Even at this late stage, I ask the Tánaiste to withdraw this and other offensive sections before the conclusion of our deliberations.

[1864]Mr. Gormley:The implication of what the Tánaiste and Minister for Health and Children has said is that if this loophole is not closed off, people could abuse the system. How many people are we talking about? What has she got in mind? When this legislation is passed by the Fianna Fáil-Progressive Democrats coalition — we are opposed to it — it will have an effect on people’s lives. The Tánaiste claims she has the highest respect for the representative groups and that many of her friends have been directly affected in this matter. If that is the case, why has she not listened to their reasoned arguments? Instead she has chosen to listen to other people’s advice because of what she perceives to be a loophole and floodgate. I know she does not like those terms but will she bring some clarity to her argument? From her comments, it seems she is suggesting that it will be open to abuse. Will she clarify for the House if this is what she means?

Ms C. Murphy:If one looks back over major political miscalculations in the past 12 years, the hepatitis C issue stands out. It happened because the only people considered to be experts were those with professional credentials. The other experts in this case are those living with the infection. They cannot be dismissed.

I recall in the mid-1990s making arrangements for members of Positive Action to meet politicians. At the time, the debate was stuck on issues concerning legal and medical opinion. I get the sense we are at the same point now. It feels like groundhog day. If the legislation delivered on the expectations of Positive Action and the other groups concerning the one outstanding issue of the insurance scheme, there would be no protest outside the gates of Leinster House now. What should have been a positive legislative development is instead a negative one. On Second Stage I referred to the comments made in 1997 on the original legislation by Deputy O’Donnell, party colleague of the Tánaiste and Minister for Health and Children. She spoke of people having a live illness but who were not proving positive in the tests. Even then it was admitted there was a flaw that could not be ignored.

During this debate, I have been struck by the calmness and reason behind the arguments made. I am surprised the power of the arguments has not hit home. I appeal to the Tánaiste to accept these reasonable amendments. Closure on this matter will not be achieved until these amendments are accepted.

Ms Harney:I am not suggesting that any member of the four representative organisations would be unscrupulous and take up litigation. I have the highest regard for all four organisations.

Mr. Stagg:It is showing.

[1865]Ms Harney:Deputy Gormley asked about the numbers involved. Potentially, we are talking about 15,000 people. I am not suggesting that would happen.

Ms McManus:Doing what exactly?

Ms Harney:As a result of the High Court case, it is a fact that the tribunal must take into account the court’s adjudication on applications that have come before it. There is another court case coming later this year where compensation was refused by the tribunal or it was not sufficient. The tribunal’s decision is being appealed and the tribunal is obliged to take on board the decision of the court. Symptoms resembling those of hepatitis C can also indicate some other illness. That is why we need to have clarity. The fact that a claimant had blood administered to them and the say-so of a doctor is not a good enough reason to grant compensation.

Ms McManus:Is the Tánaiste saying the court decision was wrong?

Ms Harney:There was no alternative in the absence of the test. When the representative groups put forward draft legislation in 1996, why did they say it should be based on the ELISA test?

Ms Lynch:Full research had not been completed then into the efficiency of the test.

Ms Harney:Why in 1998——

Dr. Twomey:Did the Tánaiste speak to those who drafted it?

Ms Harney:No, I have not spoken to the people who drafted it. Why in 1998, when the expert group on hepatitis C was deciding the basis on which the health card would be given, did they say it should be on the basis of the ELISA test?

Mr. Stagg:The Tánaiste is using this as a scientific figleaf.

Ms Harney:It is not a figleaf.

Mr. Stagg:Matters have moved on since then.

An Leas-Cheann Comhairle:Order.

Mr. Stagg:She should not be blaming laypeople for a scientific position.

Ms Harney:These things are important. The expert group did not say that the health card should be granted on the basis of the clinician’s opinion. In any State compensation scheme established, the House would never have agreed that compensation could be awarded on the basis of a clinician’s view. This is not about not trusting [1866]people. Doctors can be wrong. Nobody would ever suggest that we establish a compensation scheme based on the opinion of the treating clinician.

Dr. Twomey:Why did the Tánaiste change her mind?

Ms Harney:Why did I change my mind on what?

Dr. Twomey:Yesterday morning the Tánaiste was fully in favour of having just the ELISA test——

Ms Harney:No, I calculated——

Dr. Twomey:——but late yesterday evening it was decided to add two more blood tests. We only heard of this when the Minister of State, Deputy Seán Power, made his Second Stage speech. The additional tests were added by way of the amendments we received this morning.

Ms Harney:The decision in regard to those tests was circulated to the groups on Wednesday evening.

Dr. Twomey:They were not referred to in the Tánaiste’s speech.

An Leas-Cheann Comhairle:The Tánaiste should be allowed to speak without interruption.

Ms Harney:I did make it clear by way of my amendments. It is not a case of having to prove positive in all the tests; it is in any of the tests. We want to make sure we leave nothing out.

Ms McManus:That is not clear in the Bill.

Ms Harney:The Irish Kidney Association expressed a view about the RIBA test. Discussions took place between officials and the groups. I also stated that if any new test arises, it can be taken on board also. We wish to ensure we are not leaving out any possible test.

I do not understand the point Deputy McManus made about my changing my mind in regard to minors. We were talking about the loss of consortium, the loss of something one has had. There is no doubt that if somebody is seeking compensation, all of these things are taken into account. Although it is moving away from the issue at hand, if somebody forms a relationship post-diagnosis, while he or she is not entitled to loss of consortium, because one cannot lose something one did not have, he or she is entitled to compensation for mental distress, loss of society, any out of pocket expenses, time taken off work and so on. That is reasonable and right. Contrary to what Deputy Twomey suggested, the Bill is not taking anything away from anyone who has it.

[1867]Ms McManus:Of course it is.

An Leas-Cheann Comhairle:Order.

Ms Lynch:It prevents them going through the process.

An Leas-Cheann Comhairle:Order, please.

Ms Harney:On the contrary, as I stated yesterday and repeated today, those who have gone through the tribunal process who do not qualify at present for the health card because of the decision made in 1998 will be given the health card. It is fair and reasonable that this should happen — it has not happened heretofore. This is not about taking anything away. On the contrary, this is about providing clarity and ensuring that the three different supports are based on the same principles and it is all——

Ms McManus:Nobody believes the Tánaiste.

[1868]Dr. Twomey:Has the Tánaiste satisfied herself that what she said in regard to amendment No. 41 is true?

Ms Harney:Yes, I have. Obviously I have taken the advice of my medical and other experts who are available to give me advice in this regard.

An Leas-Cheann Comhairle:I am now required to put the following question in accordance with an order of the Dáil of 29 June 2006: “That amendment No. 46 and the amendments set down by the Tánaiste and Minister for Health and Children for Committee Stage and not dis[1870]posed of are hereby made to the Bill, in respect of each of the sections undisposed of that the section or as appropriate the section as amended is hereby agreed to in committee, the Title, as amended, is hereby agreed to in committee, the Bill as amended is accordingly reported to the House, Fourth Stage is hereby completed and the Bill is hereby passed.”